Torts B Extended Breach Of Duty Notes

Breach of Duty

The task of determining whether a duty of care has been breached involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty. Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. Conversely, when the defendant’s conduct meets or exceeds the standard imposed by law, no liability arises under the tort of negligence, irrespective of the existence of harm caused to the plaintiff.

Thus, in deciding whether a duty of care has been breached, it is first necessary to ascertain the content of the duty (assuming, of course, the existence of a duty of care has already been established)

In Victoria we now look at legislation as opposed to Wyong. There’s no uniform approach since reforms were implemented. In Victoria, the reforms were implemented in the Wrongs Act

What is Negligent conduct?

• The nature of the inquiry at the breach stage is to determine whether, by what the D has specifically done or not done, the D has behaved sufficiently carelessly such as to constitute negligence at law.

• Broadly this involves a two-fold task:

  • Establishing the standard of care against which the D will be assessed;

  • Determining whether, by what the D has done or not done, the D meets or falls short of the expected standard of care.

• The Wrongs Act plays a significant role

• There are no degrees of breach

• Past findings of a breach are only guiding and not binding upon later cases: Qualcast (Wolverhampton) Ltd v Haynes 1959

  • This is because determining whether specific conduct falls short of the standard of care is a question of fact determined in light of the particular details of each case;

  • There are infinite variations on any given scenario that may warrant a different finding on breach even in prima facie similar situations

The reasonable person

48. General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless-

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” Blyth v Birmingham Water-works Co

• The legal standard is not that of the defendant but that of a person of “ordinary prudence” Vaughan v Menlove 1837

• “The standard of foresight of the reasonable man … eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question” Glasgow Corporations v Muir 1943

Is the standard objective or subjective?

• The definition of the reasonable person is not complete unless the words “in the circumstances” are embodied.

• These words may prevent the test from being wholly objective, for the boundary between the external facts and the quality of the actor is ill defined.

• There is a danger that ‘reasonable person’ will simply operate as a cloak of objectivity and that all persons will continue to be judged by masculine standards rather than by a gender neutral concept.

Minority

• There is no rule of law that would preclude a child of any particular age from being capable of such negligence, although it would be proper to assume that a very young child is incapable of taking care of itself unless there is evidence that the particular plaintiff was capable of doing so Cronan v Hepburn 1958

• Age is a relevant consideration, and minors have been held not guilty of contributory negligence where adult, would, on similar facts, have been deemed to be so.

• The question is: what degree of care for their own safety can be expected of minors of that particular age and experience

McHale v Watson

• The defendant was 12 years old and the claim was dismissed, holding that he could not reasonably be expected to show the same degree of foresights and appreciation of the risk that might have been required from an adult

• A child will be held to the standard of care of an ordinary child of comparable age

• Childhood is not an idiosyncrasy but a normal stage of development. The defence of childhood is therefore not personal to the defendant; it is rather to be seen as ‘characteristic of humanity at the defendant’s stage of development and in that sense normal Kitto J

  • It is open as to whether the particular child’s intelligence and experience further modifies the standard, but the better view is that it does not.

• McHale v Watson have adopted an approach which entails asking whether the defendant had exercised the care reasonably to be expected of an ordinary child of the same age, intelligence and experience. This was supported in Ryan v State Rail Authority of NSW

Old age; physical and mental infirmities

• It is unclear to what extent the standard of a reasonable person will be adjusted by the courts to allow for the incapacities and infirmities of individual adults.

Mental Infirmities

• In Australia, even though there is little judicial authority, it suggests that insanity is not a defence and that insane persons should bear responsibility for damage caused by their tortious acts of the basis that, where one of two innocent persons must bear a loss, the loss should fall on the actor

• However, any observable mental or physical deficient of the plaintiff may, additionally, be a material factor in determining whether the defendant was negligent.

  • The driver of a car will not be at fault because a pedestrian, suffering from a “hidden” abnormality, suddenly and without warning acts abnormally. Cotton v Commissioner for Road Transport and Tramways

  • Different standards apply for a circumstance where a driver is approaching someone who is in some way abnormal, eg appears to be drunk, blind etc.

• In Roberts v...

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